‘In this country, amid the clash of arms, the laws are not silent’ — Lord Atkin, Liversidge v Anderson [1941] UKHL 1

Who would have thought that a play penned by a Yank employment lawyer about a 75-year old House of Lord’s judgment and staged one balmy evening in the rarified surroundings of Gray’s Inn, could be remotely relevant today.

Yet the fundamental issue of the power of the executive and the judiciary’s ability to check it raised in this one-act drama remain all too pertinent.

The drama is set on the evening before the House of Lords is to give judgment in a case concerning a British Jewish businessman who went by the name of Robert Liversidge. Liversidge had come to the attention of the authorities.

Under Regulation 18B of the Defence (General) Regulations 1939, the Home Secretary, Sir John Anderson, ordered him to be interned on the basis that he had ‘reasonable cause’ to believe he had ‘hostile intentions’.

In the case, an elderly Lord Atkin, of Donoghue v Stevenson fame, gave a powerful dissenting judgment arguing that the regulation required the Home Secretary to have an objective reason to detain a person under the power. ‘I protest, even if I do it alone,’ he sad solemnly.

Atkin criticised his fellow judges in upholding the Home Secretary’s reading of the power, as showing ‘themselves to be more executive-minded than the executive’ and compared Anderson himself to Humpty Dumpty.

He quoted Humpty’s words in Lewis Carol’s Through the Looking Glass: ‘When I use a word…it means just what I choose it to mean, neither more nor less.

‘The question is, said Alice, whether you can make words means so many different things.

‘The question is’, said Humpty Dumpty, which is to be master –that’s all.’

And that sums up exactly the tension between court and state.

First staged in Cookham in the Maidenhead constituency of the current Home Secretary Teresa May, the play is the work of Scott Wright, partner and head of the labour and employment team at US firm Faegre Baker Daniels.

In it he imagines a meeting on the evening before the judgment between Atkin and his friend Lord Wright (no relation to the writer). Wright attempts to persuade Atkin at least to tone down some of views, warning him that he does not want to end up ‘on the wrong side of history’.

Performed under the gaze of a portrait of Lord Atkin himself and in the presence of some of his grandchildren, the play in the year of the 800^th anniversary of Magna Carta is a timely reminder of the need for the courts to stand up to the executive.

As successive Home Secretaries seek to expand their powers in the unofficially declared war on terror and the government seeks to scrap the Human Rights Act, the role played by an independent judiciary is crucial.

In his dissenting judgment, Atkin is clear: ‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.

‘It has always been one of the pillars of freedom. One of the principles of liberty… that the judges are no respecters of persons and stand between the subject and any attempted encroachments on is liberty by the executive, alert to see that any encroachment is justified in law.’

In a discussion that followed the play, Angela Patrick, director for human rights policy at campaign group Justice, noted that it is the difficult cases that define a society. ‘Human rights and the rule of law are there for us all, in good times and bad.

The play – and the Atkin dissent — weren’t important because of Liversidge, but for what they have to say about how we as a community stick by our principles when times get tough,’ she said.

And that is set to be tested by the Supreme Court in November when it considers the linked cases of Rahmatullah and Belhadj, which concern the alleged actions of the British government in the rendition and torture of two foreign nationals.

The question prompted by Humpty’s remark: who will be the master?

* The playwrite tells me there may be more performances in the autumn.